Blog of the International Journal of Constitutional Law

Chinese Constitutionalism Again…

Tom Ginsburg and Mike Dowdle have invited me to respond to Mike’s critique last September in this space of a comment of mine, and I both thank them for the opportunity and apologize for taking so long. In a previous life I was probably a contractor.

Mike confessed himself depressed by a reported statement of mine that the constitution was “the least important document in the Chinese legal system.” While I don’t think I’ve made that statement in print or ever really fleshed it out, I freely admit to saying things like it on many occasions. But I’m not sure what has driven Mike to reach for the Prozac. He reads my statement pretty much as I meant it, and even agrees with it.

Mike understands me to mean that “insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments.” Actually, I’m not really worried about whether the constitution gets cited or not, and my statement is not court-centric; what I’m talking about is whether the constitution is a meaningful source of rules that are supposed to be followed in the same general way that we understand, say, National People’s Congress legislation to be a source of such rules. But in any case, Mike says that he agrees with his reading of me.

So what is the problem? It seems that Mike does not like the way my statement implicitly defines “legal system.” As he says, “the idea of a ‘legal system’ can encompass far more than its juridically-authoritative texts[.]” Certainly it can. But must it always? If we can define “legal system” broadly for some purposes, can we never define it narrowly for others? Was my purpose in my statement less legitimate than Mike’s in his? To take an American example, the Declaration of Independence and the Federalist Papers can be said in some sense to be part of the American legal system and to have constitutional importance, but it does not follow that it no legitimate purpose is ever served, or knowledge gained, by distinguishing them from the document called the United States constitution.

Mike is too sophisticated, I am sure, to imagine that words can have only a single meaning that must apply at all times and in all contexts. And even if he did believe that, he is too modest, I am also sure, to imagine that he alone has a grasp of that single correct definition. The best test of a definition is whether it is useful. Does it, for example, allow us to say anything that is not obviously or tautologically true? I believe the limited notion of “legal system” contained in my statement does so. For it is possible to imagine constitutions in a legal system so defined that are not the least important document, and therefore, my claim about China’s constitution is meaningful and tells us something that is not obviously true and that indeed might be false (although Mike does not assert this). It is therefore, I think, a statement worth making, and I am at a bit of a loss as to how to understand the practical implications of Mike’s critique. He seems to agree that my statement is accurate, as far as it goes, but fears it will be misunderstood. Does that mean I and others simply shouldn’t make it? Does he mean that the assertion, while true, is so minor that its prejudicial effect (to use the language of evidence law) outweighs its probative value? If my observation is both accurate and worth making, how am I supposed to make it?

I should add that Mike misreads me in saying that my statement is about “deficiencies”; it is his view, not mine, that the failure of the rules of the document labeled “Xianfa” to be followed is ipso facto a deficiency. I think he attributes this view to me because we probably have a real disagreement on a very fundamental point, which is whether China is quite different from the US or pretty much the same. It would be silly to maintain that everything about China is absolutely unique and sui generis, and I don’t maintain it. At the same time, however, it would be an astonishing coincidence if a country with China’s history were to end up with a legal and political system that had a lot in common with that of the US—or to use Mike’s words, that its “constitutional experience” would be “of a kind shared by American constitutional understandings.” To say that different societies are different is sometimes tarred as an ethnocentric exoticizing of the Other; but it seems to me that saying they are the same commits the same sin: imagining that everyone is just like Us under the skin, and that cultural differences amount to little more than different ways of circular dancing and the wearing of funny hats. We ought to be methodologically open to the possibility that things in some places really are different.

Finally, in case there is any doubt on the matter, I reject the idea that cultures (political, legal, or otherwise) are unchanging and eternal—in fact, I don’t even find the term very helpful in most contexts—and thus I certainly do not want to be read as Mike fears I will be read: that China can never have constitutionalism as he understands it. Nor does it mean that any of the phenomena he discusses aren’t worth looking at; of course they are. But neither of these conclusions follows from my statement. If some people find them there, there will be plenty of time for Mike to get depressed then.

–Donald Clarke

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Published on February 4, 2010
Author:          Filed under: China, Donald Clarke, hp

Japan’s Prosecutors Score a Big Win

UN human rights committees and other international observers have called for major changes to Japan’s interrogation procedures for more than a decade, claiming that extended interrogations without the presence of counsel deny fundamental rights. The most commonly proposed remedy is complete recording of interrogations. The DPJ appointee as Minister of Justice is a progressive member of parliament named Keiko Chiba who has called for this reform and many others since she was first elected in the mid-80s. In her inaugural remarks back on September 16, Ms. Chiba announced that implementing recording of interrogations was one of her top three objectives. See my short profile of Ms. Chiba and report on her remarks here.

Needless to say, Japan’s prosecutors saw the Minister’s comments as a declaration of war, an intrusion on the interrogators’ efforts to build rapport with suspects and find the truth. (This is the justification presented by government representatives to international human rights committees.) Black box interrogations produce the confessions universally described as the “king of evidence” in Japan’s criminal prosecutions. Ms. Chiba wants to change all this.

Not so fast, Minister! In their ongoing investigation into the finances of DPJ bigwig Ichiro Ozawa, the prosecutors arrested three of his former aides on Friday, January 15. (One is an elected member of parliament. All three remain in detention as of this writing.) In remarks to the press five days after the arrests, Prime Minister Hatoyama said the government would NOT submit a bill requiring recording of interrogations this year “because there is a possibility this might be seen as a criticism of the prosecutors,” according to the Japanese Asahi report. For an English reference, see here.

By the way, if YOU served as counsel to a suspect under interrogation and you wanted to know what he’s spilling, you might be able to read about it in the newspaper. See, e.g., this story. This can’t be procedure envisioned by the drafters of Japan’s Constitution back in 1946 when they stuffed it with so many provisions designed to protect due process.

–Larry Repeta, Tokyo

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Published on February 2, 2010
Author:          Filed under: criminal justice, Democratic Party of Japan, hp, Japan

Renewing the Upper Chamber in Canada

The Canadian Prime Minister has recently appointed a slate of five new Senators to the Upper Chamber.

Two things are significant about this latest round of Senatorial appointments. First, the governing Conservative Party now holds a plurality of seats in the Senate after spending years in the wilderness of minority status. Second, the prospect that the Conservative Party could soon control a majority of the Senate has persuaded the opposition Liberal Party to fall in line behind the Conservative proposal to establish term limits for Senators. Canadian Senators currently keep their office until age 75.

But the Liberal Party has proposed something further than term limits alone to renew the Canadian Senate. The Liberal leader, Michael Ignatieff, has endorsed a 12-year renewable term for Senators, but with a wrinkle: “I’d even go so far as to limit the prime minister’s prerogative to appoint senators … I would pass it through a public service appointment commission so we scrub it and get the best possible appointees.”
This reform plan raises an important question of Canadian constitutional law: May the Prime Minister waive her constitutional duty, which she discharges through the Governor-in-Council, to appoint Senators?
The answer, I think, is no. 
For to restrict the prime ministerial power to appoint Senators would be virtually to divest the Prime Minister of the plenary appointment power she enjoys under the Canadian Constitution Act of 1867. And this would effectively constitute an amendment to the Canadian Constitution.
Scholars of Canadian constitutional law will surely be familiar with the troubled history of the enduring debate on Senate reform in Canada. If that debate has taught us anything, it is that these kinds of transformation to Canadian public institutions cannot be achieved by simple statutory bill.

Reforming the Senate in this way will require more than a parliamentary law in order to consummate such far-reaching changes to Canadian constitutional conventions and traditions. What will be required is a formal constitutional amendment.

Passing a constitutional amendment in Canada pursuant to the rule of 7/50 in the Constitution Act of 1982 (requiring the consent of 7 provinces representing at least 50 percent of the population) is perhaps just as difficult, if not more so, than scaling the monumental heights required by Article V of the United States Constitution.

Some scholars have suggested that the 7/50 rule does not apply to these kinds of changes to the tenure of Senators. They argue that one of Canada’s other amendment formulae will apply. But it is not clear how anything but the 7/50 rule can apply in this case because the proposed changes involve the selection of Senators–which is a matter expressly made subject to the 7/50 rule in Section 42 of the Constitution Act of 1982.

Nor am I convinced that limiting the prime ministerial power to appoint Senators does not in fact constitute a constitutional amendment.

In any event–and without necessarily endorsing or rejecting these proposals for Senate renewal from my own personal perspective–these current discussions about Senate reform augur great promise for advocates of Senate renewal in Canada because both major parties have reached agreement on an important point: that it is now time to move from life-tenure to term limits for Senatorial service.

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Published on February 2, 2010
Author:          Filed under: Canada, constitutional design, hp, Richard Albert, Senate of Canada

Kenya process moves forward…

Kenya’s Parliamentary Select Committee has now returned the draft constitution—heavily modified—to the Committee of Experts for reconsideration. The major change was dropping the semi-presidential system in favor of a pure presidential system with a directly elected president, reflecting demand from the public for greater clarity and clearer channels of accountability.

The switch from semi-presidentialism is interesting on a number of dimensions. It upends a bargain among the two leading political factions around Prime Minister Odinga and President Kibaki. With only one political prize to fight for, the stakes are higher and so competition will be intensified, hopefully without the horrific violence that accompanied Kenya’s last election.

Another implication concerns drafting processes. In the 1990s, Jon Elster argued that constitutions ought to be written by specially constituted constituent assemblies because legislatures would engage in self-dealing if they were involved in the process. In a recent empirical examination, we did not find evidence that parliament-centered drafting exercises produced constitutions with more parliamentary power. One might see the Kenyan parliament arguing for presidentialism as data point in this regard (though of course one can have fairly strong legislatures in presidential systems.)

We have not yet seen the draft, but it was reported that the PSC also removed the Human Rights Commission, the National Land Commission and the Gender Commission from the draft. The MPs proposed that instead of entrenching these commissions in the constitution they should be stipulated by Acts of Parliament. Parliament has an expanded number of constituencies in the draft, and there were modifications to the proposed system of devolution, a crucial political issue in Kenya. There were a few other smaller changes too, such as removing the entrenchment of Nairobi as the capital.

The Committee of Experts now evaluates the changes and will return the draft to parliament by February 25. Parliament then debates the draft for 30 days. If approved, the process jumps to publication of new constitution by April 26 then referendum on June 26.

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Published on February 1, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

Canadian Supreme Court decision in Khadr handed down

For those following the Khadr case (previously discussed here), the Supreme Court of Canada has handed down its decision. To recap, Khadr is a Canadian citizen who was captured by the U.S. as a teenager and has been tortured in the course of his indefinite detention without trial at Guantanamo Bay. He has been fighting to try to get the Canadian government to request his repatriation, thus far to no avail. The upshot is that Khadr wins on the merits but is now limited to declaratory relief. The Court declares that the government’s knowing complicity in his detention and torture violated his Charter rights, but it overturns the lower court’s grant of injunctive relief directing the Canadian government to request his repatriation. It’s now up to the government to decide how to comply with the Court’s declaration. The decision is available here.

So from a judicial politics angle, the interesting question is, why rule for Khadr on the merits but reverse the lower court’s order directing the recalcitrant government to request his repatriation?
Should we take at face value the Court’s solicitude for the government’s need for latitude in the foreign policy arena? Is the Court trying to let Stephen Harper’s Conservative government save face? Is it worried about noncompliance? Perhaps some combination of all of the above: giving the government the ability to say that it is voluntarily choosing to request Khadr’s repatriation increases the probability that it will in fact do so? Do any of our sophisticated Canadian friends/my fellow Canadians have any thoughts?

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Published on January 30, 2010
Author:          Filed under: Canada, David Law, Guantanamo Bay, hp, Supreme Court of Canada

Shoe Throwing at the Israeli Supreme Court

A strange incident at the Israeli Supreme Court — a person with a record of threatening lower court judges threw his shoes (a-la Iraqi journalist move) at no else than Chief Justice Dorit Beinisch during a Supreme Court hearing in a matter unrelated to the shoe thrower. CJ Beinisch was hurt and required medical treatment for about an hour, after which she returned to the bench and to her other adjudication duties. Criminal charges have been laid against the shoe thrower, and CJ Beinisch is listed among the prosecution witnesses.

While this particular kind of event is unprecedented, threats against Israeli SC judges are not new. Throughout much of the 1990s, during the hey-day of judicial activism and the so-called “constitutional revolution” in Israel, the then Chief Justice Aharon Barak’s private residence in Jerusalem was guarded by government security forces 24/7 following concrete threats against him from Ultra-Orthodox and extreme right wing circles. And lest we forget, Prime Minister Rabin was assassinated in the name of that same political agenda in 1995.

Opposition to the judicialization of politics in Israel and to Supreme Court’s activism seldom emanates from the old Ashkenazi elites, the mainstream Zionist consensus or from big business. Rather, most political opposition to the Court so far has come from either orthodox religious circles who accuse the Court of forwarding its own liberalizing anti-religious agenda, from right-wing nationalists and Jewish settlers who accuse the Court of advancing an agenda that is distinctly to the left of the Israeli median voter’s worldviews, or simply from so-called “new elites” who continue to gain power while resenting the Court’s affinity with the ideological tilts and cultural propensities of Israel’s Ashkenazi establishment and the urban intelligentsia.

The main two claims are that given the Court’s quite lenient standing and access rights, and the highly contentious nature of many of the issues it deals with, the Court should adopt a more deferential approach; and that given the centrality of the Court in Israeli politics, the Court’s composition should better reflect the diverse demographics, worldviews and policy preferences of the Israeli society. As I wrote in an earlier post, these pressures have led to struggles over judicial appointments, and more generally to intense debates concerning judicial activism. It is not entirely clear whether the bizarre shoe attack earlier this week was driven by ideology, personal grievances against CJ Beinisch or by some other motive. But it no doubt reflects the charged atmosphere surrounding a very (some say too) visible Court.


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Published on January 28, 2010
Author:          Filed under: Israel, Ran Hirschl

Socio-Economic Rights: The Second Stage

In a post last week, I argued that the South African Constitutional Court’s first stage of socio-economic rights decisions threaded a needle by enforcing such rights, yet accommodating separation of powers concerns. This new post discusses the second of the Court’s three stages. In this second stage, the Constitutional Court also dealt with several cases in which homeless people were evicted from land where they were “squatting.” Yet in these cases, the Court eventually ordered any municipalities seeking eviction to participate in “meaningful engagement” with the vulnerable community, and ensure that reasonable alternative circumstances were provided. Moreover, the Court essentially encouraged the squatters to return if the government was intransigent. This created a strong incentive for the municipality to treat the “squatters” with dignity. One such case was Occupiers of 51 Olivia Road & Others v. City of Johannesburg, CCT 24/07 (2008). What’s legally innovative about the “meaningful engagement” approach is that it is a kind of forced alternative dispute resolution, in a structural class action type context.

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Published on January 28, 2010
Author:          Filed under: Mark Kende hp

Turkish court ruling

Jurist reports that Turkey’s constitutional court has over-turned a law allowing for civilian prosecution of military personnel in civilian courts. The report describes the law as being a barrier to EU accession, but the real politics are likely domestic: the law was promulgated in part to facilitate investigation of military officials and others who were involved in the alleged plot against the ruling Justice and Development Party. Scholars of the constitutional court have long viewed it as leaning toward the secular statist pole of Turkish politics, as evidenced by its repeated willingness to uphold challenges to ban Islamist political parties. This decision seems quite consistent with that overall approach. We welcome further comment from those more familiar with the local politics!

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Published on January 27, 2010
Author:          Filed under: hp, Tom Ginsburg, Turkey

Competing Models of Democracy in Canada and the United States

A few years ago, Michael Adams illuminated the many ways in which the United States and Canada are hardening in their views on civil society, culture, and politics. Entitled “Fire and Ice,” the book marshals an encyclopedic volume of data to show that Canada retains its own distinct identity—one that remains vibrant and strong despite being subject to omnipresent American influences.
But if the book left any doubt that the United States Constitution and the Canadian Charter of Rights and Freedoms are anchored in divergent constitutional values, the recent judgment of the Supreme Court of the United States in Citizens United v. Federal Election Commission should confirm that the United States and Canada orient themselves toward different conceptions of democracy, at least with respect to private expenditures in political elections. Whereas Canada adheres to a model of egalitarianism, the United States appears to adhere to a model that may be best described as libertarian.
Begin with the relevant Canadian case: Harper v. Canada (Attorney General), in which the Supreme Court of Canada upheld a law limiting advertising expenditures by individuals and groups to a maximum of $150,000 nationally and $3,000 in a single electoral district. Writing for the majority, Justice Michel Bastarache outlined the egalitarian foundations of democracy in Canada:

“The Court’s conception of electoral fairness … is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation. Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power.” [para. 62; internal citations omitted]

In contrast, last week in Citizens United, the Supreme Court of the United States invalidated analogous limits on advertising expenditures in the United States. Henceforth, groups like corporations and unions are no longer subject to restrictions on the amount they may spend independently of political campaigns. The Court’s judgment, delivered by Justice Anthony Kennedy, is revealing in many ways, but most notably in just how sharply it departs from the words of Justice Bastarache:

“Speech,” wrote Justice Kennedy, “is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” [p. 23]

Moreover, “political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” [p. 33; internal citations omitted]

All of which, for Justice Kennedy and the majority, suggests that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” [p. 44]

This is fascinating evidence of the contrast of cultures between the United States and Canada, and also of their conflicting visions of popular participation in the political process.
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Published on January 25, 2010
Author:          Filed under: campaign finance; election, Canada, hp, Richard Albert, United States

Statutes on constitutional amendment procedure?

here is a question from Mongolia, where the parliament is considering drafting a statute on constitutional amendments. Some countries have specific statutes to cover the procedure for proposing and passing an amendment, filling in details not contained in the constitution. Do any readers have examples of such statutes? Please let us know by comment if so.

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Published on January 25, 2010
Author:          Filed under: hp, Tom Ginsburg